Republic Iron & Steel Co. v. Williams

Citation53 So. 76,168 Ala. 612
PartiesREPUBLIC IRON & STEEL CO. v. WILLIAMS.
Decision Date12 May 1910
CourtSupreme Court of Alabama

Appeal from City Court of Birmingham; H. A. Sharpe, Judge.

Action by William Williams, an employé, against the Republic Iron &amp Steel Company, for damages. Judgment for plaintiff, and defendant appeals. Affirmed.

Mayfield J., dissenting.

The substance of the complaint is sufficiently set out in the opinion, as are the facts in this case. The following charges were refused to the defendant: (6) "The court charges the jury that you cannot find for the plaintiff under the second count of this complaint, unless he has reasonably satisfied you from the testimony that his foreman negligently ordered him to go into the furnace and negligently failed to warn him of the danger on account of the dropping of the liquid; and before you can conclude that the foreman was negligent in failing to warn the plaintiff in such regard the plaintiff must reasonably satisfy you by your evidence that the foreman knew or should have known of the danger on account of such dropping liquid, and that the plaintiff himself did not know of the danger of such dropping liquid." (9) "The court charges the jury that you cannot find for the plaintiff under the second count of this complaint unless he has reasonably satisfied you from the testimony that his foreman negligently ordered him to go into the furnace, and negligently failed to warn him of the danger on account of the dropping of the liquid; and before you can conclude that the foreman is negligent in failing to warn the plaintiff in such regard, the plaintiff must reasonably satisfy you by the evidence that the foreman knew or should have known of the danger on account of such dropping liquid and that the plaintiff himself did not know of the danger of such dropping liquid, and that the foreman knew or should have known that the plaintiff did not know of such danger on account of the dropping of such liquid." (7) "The court charges the jury that under the evidence in this case the plaintiff's place of work was on the outside of the furnace, and he had no business or duties that required him to be on the inside of the furnace; and unless he has reasonably satisfied you by the evidence that Mr. Spark ordered him to go into the furnace, and he went in in obedience to such order, he is not entitled to recover.

Percy, Benners & Burr, for appellant.

Bowman, Harsh & Beddow, for appellee.

SAYRE J.

It is entirely clear that the second count of the complaint is framed under subdivision 3 of the employer's liability act (section 3910 of the Code). After stating the common employment of plaintiff and the employé of whose negligence he complains, and that both were acting in the discharge of duty under their employment in or about repairing a furnace of the defendant employer, the count avers that plaintiff went into the furnace where an acid gas or liquid dripped into his eye causing damage. The qount proceeds: "Plaintiff further avers that he suffered said injuries and damage, as aforesaid, by reason and as a proximate consequence of the negligence of a person in the service or employment of defendant, to whose orders or directions plaintiff at the time of the injury was bound to conform, and did conform, and said injuries proximately resulted from his having so conformed, viz., said person, whose name is unknown to plaintiff, negligently ordered or directed plaintiff to go into said furnace without properly and sufficiently warning or informing plaintiff as to said gas or liquid." The demurrer takes the points, among others, that it does not appear that the person giving the alleged negligent order knew that there was any danger from the gas or liquid; nor that the person giving the order was under any duty to warn the plaintiff of the danger; nor that the order given was a negligent order.

If the concluding words, "without properly and sufficiently warning or informing plaintiff as to said gas or liquid," had been omitted, the sufficiency of the count would need to be conceded on the authority of Mobile & Ohio v. George, 94 Ala. 199, 10 So. 145, nor is the concession grudgingly made as doubting the wisdom of the rule, established by legislative authority and a long line of decisions by this court, which allows great generality of averment in complaints, nor as doubting the strict analogy, if not direct authority, of the case to which particular reference has been made. In Robinson Mining Co. v. Tolbert, 132 Ala. 462, 31 So. 519, the third count of the complaint was framed under the second subdivision of the act which affords the employé a remedy for injury caused by the negligence of a co-employé having superintendence intrusted to him. The averment of the count was that the plaintiff suffered injury "as a proximate consequence of the negligence of a person, to wit, one Frierson, in the service or employment of defendant, and intrusted by defendant with superintendence, whilst in the exercise of such superintendence, to wit, said person negligently failed to warn or notify plaintiff of the presence of a large quantity of a high explosive, at or near the place where plaintiff was at work as aforesaid, though there was present at or near the said place at which plaintiff was at work, a large quantity of a high explosive which exploded as aforesaid." The demurrer was that it was not alleged that Frierson knew of the presence of the explosive. The ruling was that plaintiff was not bound to make such an allegation; that the general allegation of negligence was sufficient; but, it was added that proof must be made that defendant knew, or was in position, by the exercise of reasonable care, to know, of the presence of the explosive. In Alabama Company v. Hammond, 156 Ala. 253, 47 So. 248, a count under the third subdivision averred that "the negligence complained of consisted in this: That Varnon (who was a co-employé with authority to order or direct) negligently directed plaintiff's intestate to shovel dirt and rock from a bench on a wall, where there was a rock in such position that it was liable to fall upon plaintiff's intestate and injure him; that the fact that said rock was in such a position that it was liable to fall and injure plaintiff's intestate was known to said Varnon, or by the exercise of due diligence should have been known to him," and more than that does not affect the question at issue. It was said to be "entirely clear that unless superintendence of the place was committed to Varnon, as well as the authorization to give the order complained of, no duty rested upon him to ascertain its safety. Non constat the maintenance of its safety was committed to another, and, if it was, Varnon (in the absence of knowledge or notice of its unsafe condition) had the right to assume that it was safe, and was under no duty to exercise due care in ascertaining its condition. Indeed, on the averments of the count, unless Varnon knew or had reason to believe that the rock was liable to fall, the giving of the order could not have been negligent"; and it was held that the demurrer should have been sustained. In the recent case of Tenn. C., I. & R. R. Co. v. Williamson, 51 So. 144, a count charged that plaintiff's injuries were caused by the negligence of one Myers to whose order he was bound to conform, etc., "and that the said negligence consisted in this: The said Myers ordered plaintiff to chain certain cables to a crane and failed to warn plaintiff of the danger caused by the emission of sparks from the said hot steel rail which was being sawed as aforesaid." This court held that "the count fails to show any duty on the part of Myers to warn plaintiff in that it fails to aver that Myers knew of the danger or that plaintiff was inexperienced or was in need of warning, and was therefore subject to the demurrer interposed." We have thus set out these cases for the reason that it is supposed that they ought to control the decision in this case, and because learned counsel differ as to their meaning and application. Other cases cited will be referred to presently.

Every complaint for negligence must show a relation between the parties out of which arises a duty owing from the defendant to the plaintiff. Extremest advocates of the modern practice of general and informal allegation in complaints have not yet denied the necessity of averring such a relation. That much shown, we have a long line of cases running back to Leach v. Bush, 57 Ala. 145, which hold that an averment that the defendant negligently failed to do and perform the act imposed by duty sufficiently states a cause of complaint. Mobile & Ohio v. George, supra, is one of them. The liability of an employer to an employé for the negligence of his co-employé not being general, but obtaining only under the special circumstances designated by the statute, a complaint under the statute must of course show circumstances under which the statute authorizes a recovery. And it has been ruled, not without due regard, as we think, for the line of cases referred to and the statute permitting all pleadings to be as brief as is consistent with perspicuity and the presentation of facts in an intelligible form--it has been ruled that a complaint under the employer's liability act may state conclusions, but conclusions when employed must ordinarily be accompanied with averments of fact whereon issues can be understood, joined, and tried. Louisville &amp Nashville v. Jones, 130 Ala. 456, 30 So. 586. And the general statute on the subject of pleadings requires that facts must be so presented that a material issue in law or fact can be taken by the adverse party. Code, § 5321. And in the case last cited it...

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